Key differences between the new statutory and the old common law offence
- under the old common law offence, only companies could be prosecuted; the new statutory offence also applies to crown bodies, partnerships and some other unincorporated organisations (as long as they employ staff);
- there will now be one single offence for England, Wales, Scotland and Northern Ireland. Before, there were three separate common law offences: one for England and Wales, another for Scotland, and another one for Northern Ireland (although there were significant similarities between the three of them);
- under the old common law offence it was necessary to prosecute a director or senior manager (a controlling officer) of the company for manslaughter, in order to be able to prosecute the company for manslaughter. The prosecution against the company was entirely dependent on the evidence against the senior manager. Under the new statutory offence, the prosecution of a director or senior manager is no longer necessary. Instead, there is now an entirely new test to assess the guilt of the company that rests upon whether there has been a serious management failure within the organisation;
- there is a clearer test for assessing whether or not there has been ‘gross’ negligence. The jury must consider that the organisation’s failure fell “far below what can reasonably be expected” and there are factors set out that the jury need to take into account.
- under the old common law the offence, the only penalty was a fine. Under the new statutory offence, in addition to fines, the court has the power to make a “remedial order” that requires the company to remedy the breach of the Act. This is a similar power to the one that the courts have following convictions for health and safety offences. The court also has the power to make a “publicity order” that requires the organisation to publicise any conviction.